Where Do We Stand Today on Voting Rights?

By Carolyn Burstein

May 30, 2014

The Voting Rights Act of 1965 was a landmark piece of federal legislation signed into law by President Lyndon B. Johnson and later amended five times to expand its protections. Designed to enforce the voting rights guaranteed by the 14th and 15th Amendments to the Constitution, it prohibits any state or local government from imposing any laws that result in discrimination against racial or language minorities.

In light of Shelby County v. Holder (2013) and voter suppression laws of the past few years, the Voting Rights Act of 1965 sounds downright quaint, despite being a highly effective piece of civil rights legislation. A reminder: the Shelby County v. Holder decision struck down the “coverage formula,” which encompassed jurisdictions that engaged in the most egregious voting discrimination in 1965, reasoning that it was no longer responsive to current conditions.

For the past six years, we have been witnessing an unprecedented, centrally coordinated campaign to suppress students, minorities, immigrants, ex-felons and the elderly from voting, according to the Advancement Project, a civil rights organization that has filed and handled many of the lawsuits against offending jurisdictions.

Rolling Stone magazine reports that Republicans have long tried to drive Democratic voters away from the polls, quoting Paul Weyrich, co-founder of the Heritage Foundation and influential conservative activist, saying back in 1980, “I don’t want everybody to vote. As a matter of fact, our leverage in the elections goes up as the voting populace goes down.” Thanks to sentiments like his, a systematic campaign has been orchestrated particularly since the mid-term election of 2010, funded largely by David and Charles Koch through the American Legislative Exchange Council (ALEC), uncovered by an investigative report by the Center for American Progress (CAP). In 2011 alone, 38 states introduced legislation designed to impede voters at every step of the electoral process.

Many state legislatures have defeated these attempts, but a dozen have succeeded in approving obstacles to voting, such as voter-ID laws; restrictions on voter registration (such as placing onerous filing requirements on groups like the League of Women Voters), early voting (such as eliminating many days, especially Sundays — when many African-Americans tend to vote — formerly allowed), student voting (such as allowing voting only if students registered their cars in the state) and provisional ballots; barring ex-felons who have served their sentences from voting; and voter purges. Collectively, these laws are a significant burden for many eligible voters trying to exercise their most fundamental constitutional right. The five worst states for voting rights in 2011 and 2012 were Florida, Texas, Tennessee, Wisconsin and Kansas. The picture has changed somewhat in 2013 and 2014, as we’ll see below.

CAP reports that 11% of American citizens, but 25% of African-Americans, do not possess a government-issued photo ID (over 21 million citizens!) and three of the photo ID bills to have passed — in South Carolina, Texas and Tennessee — expressly do not allow students to use photo IDs issued by state educational institutions to vote.

According to CAP, the chief sponsor of Georgia’s voter ID legislation, Representative Sue Burmeister (R-Augusta), told the Justice Department the bill would keep more African-Americans from voting, which was fine with her since “if there are fewer black voters because of this bill, it will only be because there is less opportunity for fraud.”

As former President Bill Clinton said in 2012, “There has never been in my lifetime, since we got rid of the poll tax and all the Jim Crow burdens on voting, the determined effort to limit the franchise that we see today.”

Republicans maintain that they are waging a virtuous campaign to crack down on rampant voter fraud, yet there is scant proof because voter fraud is exceedingly rare. According to Rolling Stone magazine, a major probe by the Justice Department between 2002 and 2007 failed to prosecute a single person for going to the polls and impersonating an eligible voter. Out of the 300 million votes cast during that period, only 86 people were convicted for voter fraud, and most of those cases involved immigrants and former felons who were simply unaware of their ineligibility.

Fortunately, the courts are blocking GOP-passed voter suppression laws, including in crucial swing states like Florida, Ohio and Wisconsin. “It is a remarkable development that courts across the country have almost uniformly rejected every single law passed making it harder for eligible citizens to vote,” says Wendy Weisser, director of the democracy program at the Brennan Center for Justice. “This is a clear rejection of attempts by politicians to manipulate the election laws for political gain.” It’s important to note that voter suppression laws have not been blocked unanimously, but the pushback against these laws has been extraordinary, sending a strong signal that restrictions on the right to vote are unconstitutional, discriminatory and unnecessary.

In the past few months, the courts have continued to hand down decisions that have upset Republican plans to suppress voting. The New York Times reports that the residents in Arizona and Kansas can register to vote using a federal form without having to show proof of citizenship; voter ID laws in both Arkansas and Wisconsin have been struck down; and finally, Kentucky Senator Rand Paul has become the most prominent member of his party to distance himself from campaigns for voting restrictions, declaring that these alienate the very people that the Republicans should be wooing.

Outside of a federal law that requires first-time voters to show a photo ID, state laws are completely inconsistent on this issue. During 2014, according to the National Conference of State Legislators (NCSL), voter ID legislation has been introduced in 24 states. NCSL says that 11 states have strict voter ID laws — 8 with strict photo ID laws and 3 with strict non-photo ID laws. Twenty states have less strict voter ID laws. The remaining 19 states currently require no documentation to vote.

Thanks to Judge Lynn Adelman, who invalidated the Wisconsin law in April 2014 that required a voter to present a government-issued ID, like a driver’s license or passport, judges in other states now have a detailed road map for challenges to similar laws. She found that over 300,000 Wisconsin voters, or 9% of all voters in Wisconsin, lacked the required ID — more than twice the margin of victory in the most recent election for governor. Judge Adelman found that most of these voters were lower-income and poorly educated residents who faced substantial barriers to getting the documents needed to obtain a photo ID. Furthermore, since the law had a disproportionate impact on minority voters, it also violated Section 2 of the Voting Rights Act. This finding hands a potent weapon to challengers of similar laws in Texas and North Carolina — two states that are the focus of current efforts. “Latino Decisions”, an organization focused on Latino opinion research, and the Wisconsin ACLU, carried out the research that was critical to the ruling, according to the Daily Kos.

This past week, all eyes were on developments in North Carolina. The North Carolina NAACP, the Advancement Project, and the League of Women Voters filed a brief against a dizzying array of impediments to voting passed by the North Carolina legislature in 2013. “Without same-day registration [a common practice in that state until this year], without the full schedule of early voting, without voter protection from vigilante poll watchers, without the ability to cast provisional ballots if you mistakenly go to the wrong precinct, people in North Carolina will be disenfranchised during November’s critical elections,” said Rev. Dr. William J. Barber II, president of the North Carolina NAACP. The legal team is confident that their challenge to the law will be successful.

But because of the amount of time that challenges to the law take, the Southern Coalition of Social Justice and the ACLU have requested the Federal Court to put North Carolina’s voter suppression law “on hold” for the 2014 midterm election.

One helpful device that will aid states in improving their electoral performance is courtesy of the Pew Charitable Trusts in conjunction with MIT. PEW has launched a revised Elections Performance Index (EPI), an online tool that provides the first comprehensive assessment of election administration in all 50 states and the District of Columbia. It is now possible, by using data from the 2012 election, to compare performance across the states and across election years. By juxtaposing the lowest-performing states with the highest-performing states, a clear picture emerges of the distinctions between the two on the 17 indicators.

Seven of these indicators are of primary interest to this article. They relate to voter registration rates, turnout, registration or absentee ballot problems, provisional ballots (cast or rejected), and online registration availability. The entire interactive report can be viewed online at www.pewstates.org/epi-interactive.

Our vision of equity and social justice naturally allies us with those who are fighting any kind of discrimination, whether it be racism, classism, ageism or gender discrimination. The common good demands that all people share the benefits and responsibilities of a democratic society, and a most precious benefit/responsibility is the privilege of voting — letting our voice be heard. For these and many other reasons of justice, NETWORK supports those who are working against voter suppression laws across the country and invites others to do the same.